EVIDENCE SYLLABUS, Fall, 2001
Professor Andi Curcio
Office: 651-4157 -- Room 430
e-mail: acurcio@gsu.edu
Office hours: generally available from 9:30-2:30 Tues - Fri

CLICK HERE TO LINK TO THE FORUM SITE

 

Required Texts
1. Evidence, The Objection Method, Prater, Arguello, et al.

2. Courtroom Evidence Handbook, Goode & Wellborn, 4th Edition (make sure to get THIS edition because it contains the most recent amendments to the F. R. Evid)

3. Two case files published by N.I.T.A.: State v. Wyatt, Rudolf & Maher; and Lang v. Anderson, Kalo & Thomas

Recommended outside reading and practice materials

1. Evidence, Mueller Kirkpatrick Treatise

2. Weinstein's Evidence (multi-volume treatise)

3. CALI diskettes on evidence(1) 4

4. Interactive courtroom exercises*

5. Courtroom Handbook on GA Evidence, Milich **

6. Emanuel's flashcards (for review)

* These are available in our library.
** Georgia evidence differs from Federal Evidence in many respects. If you plan to litigate in Georgia, I strongly recommend that you get this book.

 

GENERAL INFORMATION
Course Objective: To learn the Rules of Evidence through hands-on application. The goal of this course is to help you learn how to identify potentially inadmissible evidence and argue why it should/should not be admitted. The key to this class is learning to articulate WHY a particular piece of evidence is potentially (in)admissible. Your favorite phrase should be -- the evidence is (in)admissible under Rule ___ BECAUSE . . .

Syllabus and Assignments: The syllabus provides you with an outline of the material we will cover and a general plan for coverage. As you can see, there is a tremendous amount of material we need to cover. Because you need Evidence for your Litigation course and because it is heavily tested on the Bar, it is important that we cover virtually all the material on the syllabus. Be prepared to spend a lot of time reading and reviewing this material. If you fall behind, you will have a difficult time catching up!

The specific assignment for the next week's class will be posted on the class e-mail discussion list. You must check your e-mail each week because both assignments and handout problems will be posted to the e-mail list. If you are enrolled in the course, you are automatically subscribed to the e-mail discussion list. If you are not on the e-mail list because of financial aid mix-ups or something else that keeps you from being officially "enrolled" in the course, make sure that you find a friend who will get you copies of all postings.
Evidence, more than almost any subject, requires "hands on" application. It also is easier to learn in context of an entire trial. The case file, State v. Wyatt, will help you learn how the individual rules/problems fit into the "big picture". The casebook provides background information and illustrative cases. The Rules book(Goode & Wellborn) provides the text of the rules and additional examples of issues which have arisen under particular rules.

Our main focus in class will be on the Rules of Evidence. We will analyze how courts apply the rules in the cases we read and we will spend a great deal of time with "hands on" application of the Rules to handout problems based on State v. Wyatt as well as handout problems unrelated to the case file. The more time you put into the problems, the more you will get out of them. The cases we read generally are only to help you understand how the Rule is actually applied - we will not spend hours dissecting the cases like you do in other courses.

GRADES
In your law practice, you will have different approaches to evidence problems. Before a trial, you will have the luxury of thinking about evidentiary issues, researching them, and writing a trial brief in which you will argue why certain evidence should be admitted or excluded. During a trial, you will have to respond immediately to evidence, either through an objection or a response to your opponent's objection. You must know the Rules of Evidence extremely well so that you immediately can explain why, based on the Rules, you should win the contested point. Finally, I have found that it is hard to understand evidence if you have never participated in a trial. Thus, your grade will be based upon an attempt to factor in these different issues.

Trial Observation Paper - 10%
First, 10% of your grade will be based on a SHORT (2 - 3 page) paper that describes your observations of an actual trial. You may choose to observe (for a minimum of two and a half hours or an entire trial, whichever is shorter) any trial or part thereof in any courthouse in Georgia. It is up to you to choose the trial. Note that often trials settle at the last minute, so you should have a back up plan and not wait until the last minute to do your observation. Trial schedules are listed in the Fulton County Daily Reporter. Your observation paper is due NO LATER than 5 pm Tuesday, November 20 although it may be turned in any time before then. If you do not turn in this paper by 5 pm Tuesday, November 20 your paper will not be accepted and you will not get any points for this portion of your grade. Exactly what the paper should cover is described on the last page of this syllabus.

Trial Brief - 20%
The second part of your grade will be based on a trial brief you write in support of a motion in limine. The brief (and much of the in-class portion of your exam) will be based on the Lang v. Anderson case file. The details of this exercise will be distributed in class and on the e-mail discussion list on Wednesday, November 14. The brief is due before you take the final exam. You may turn it in as late as when you walk into the room to take the final exam, or you may turn it in earlier. No brief will be accepted after you begin taking the exam. The trial brief will be worth approximately 20% of your final grade. I will give you more details about the trial brief when it is assigned. Also, I will put a sample trial brief on the e-mail discussion list. In drafting this brief, you may use your casebook, rules book, class notes, and any other in-class materials, as well as any materials prepared by you.

In Class Final -(55-60% of final grade based on questions arising in Lang v. Anderson case file; 10 - 15% of final grade based on multiple choice questions)
The remainder of your grade will be a 3 hour final exam. The majority of the exam will be short answer questions based on evidentiary issues arising in the Lang v. Anderson case file. There will also be between 10 to 15 multiple choice questions. The in-class portion of the exam will be CLOSED BOOK - no text, no rules, no notes. You will be allowed to bring in the Lang v. Anderson case file, but you may have NO WRITING in the case file. You will also be asked to turn the case file in when you turn in your final exam. (You may get the case file back after exams are graded).

Attendance/Participation/Professionalism Points
Attendance, preparation, participation and professionalism are important parts of this class. To really learn this material, you must come to class and be prepared. I will give between one and two bonus points on your final grade if you are absent less than three times, are consistently well prepared when call on and meaningfully participate in class and/or on the e-mail discussion list and act in a professional manner while in class. On the other hand, I may take one or two points off your final grade if you are absent more than four times, or are consistently unprepared when called on, or act in an unprofessional manner in class. By "unprofessional manner" I mean acting in a way that distracts or disturbs your colleagues and/or me, including, but not limited to: talking to classmates or blatantly passing notes to classmates while someone is talking, or consistently coming in late or leaving early. NOTE: The ABA requires attendance. If you are absent more than 8 times (i.e. more than 30% of the class), I reserve the right to prohibit you from taking the final exam.

How to reach me:
I am generally available between 9:30 - 2:30 Tues - Fri. Come see me any time. Tell the receptionist that I said to buzz you in -- she need not announce that you're coming. If you want to make an appointment, call me (651-4157), e-mail me at acurcio@gsu.edu or see me after class.

ASSIGNMENTS*
* The casebook sets forth the applicable rules at the beginning of each chapter. However, your understanding of the Rules will be GREATLY increased if you read the accompanying headnotes that are in the Goode and Wellborn Rules book. Unlike in other classes, we will not spend a lot of time analyzing the cases, but will read them just to pull out the legal rule and see how it applies to various factual situations. We also will not be reading all the cases in the case book. Make sure you check the e-mail list to see which cases will be omitted from your reading. However, remember that this is a four hour class with a lot of material to cover. Under the theory that forewarned is forearmed: you will have to spend a lot of time preparing for class.

We will be doing a lot of handout problems - in answering the problems, make sure you can identify the part of the applicable Rule(s) you relied upon and the reason(s) underlying your answer. There may be times that we do not cover all assigned problems in a particular class. Those problems we do not cover we will either do in the next class, or I will post answers on the class e-mail discussion group. The problems are incredibly important and I strongly encourage you to spend time working through them.

FYI: When the syllabus says TBD, it means "to be distributed"

Note: For the first week, I have broken the assignments down for each class. For the remainder of the semester, I will break the assignments down into specific pages and problems as we go along.

IMPORTANT NOTE: Throughout the semester, if your last name begins with A-M, you will represent the State (and/or the plaintiff, Gary Gilbert). If your last name begins with N-Z, you will represent the defendant, James Wyatt. Prepare the problems accordingly. Remember that a good lawyer prepares her argument and then thinks about what her opponent will argue so that she will be prepared to address her opponent's argument!

Week One
Class One: Casebook -- Chapter One (Mode and Order of Presentation of Evidence pp 1- 18; problems 1-21 on pp. 26-27; Chapter Two pp. 31-48; Goode & Wellborn Rule 611
Class Two: Chapter Two pp 49-54 (do problems on p. 53); and Chapter Three (Competency -- pp. 55-61; 77;81-82; notes on pp. 84-85; pp. 89-99); Goode & Wellborn Rule 103, 601-603; State v. Wyatt - theory of the case - see handout attached to syllabus -NOTE - to do this exercise, you need to have read the entire case file!

Week Two
Chapter 4 (Relevance)
Handout cases on relevance (People of Guam v. Shymanovitz, 157 F.3d 1154; U.S. v. McVeigh153 F.3d 1166) (TBD)
Chapter 5 (Relevance - Special Rules)
Goode & Wellborn - Rules 104-105, 401-403; 407-411;
State v. Wyatt - Relevance problems handout (TBD)

Week Three
Finish Relevance (Review special rules of relevance via handout problems);
Chapter 6 (Character Evidence) (NOTE: ignore the author's "Rules on Character Evidence" - they are not "THE RULES" and last year, students found them very confusing);
Goode & Wellborne - Rules 404-405

Week Four
Finish Chapter 6 (Character Evidence) - casebook pp. 262-302;
Goode & Wellborn Rules 406 & 412 - 415;
Case file problems (TBD)

Week Five
Chapter Seven (Authentication); Chapter Eight (Best Evidence);
Goode & Wellborn - Rules 900-903; 1000-1008;
Case file and/or handout problems (TBD)

Week Six
Chapter Nine (Opinion Testimony);
Handout cases on Experts (TBD)
Goode & Wellborn - Rules 601-602, 700-705;
Case file and/or handout problems (TBD)

Weeks Seven - Twelve (Hearsay)
Chapter Ten (Hearsay Defined); Chapter 11 (Hearsay Exclusions); Chapter Twelve (Hearsay Exceptions -- Declarant Unavailable); Chapter 13 (Hearsay Exceptions Not Requiring Declarant Unavailability); Chapter Three (portions on Recollection -- pp. 99-114);
Goode & Wellborn (Rules corresponding to assignment);
Case file problems (TBD); Hearsay Handout Problems (TBD)

Week Thirteen
Chapter 16 (Impeachment);
Goode & Wellborn - Rules 607-610; (briefly review R. 601-603)
Case file problems (TBD)

Week Fourteen
Chapter 17 (Privileges); Case file problems (TBD)

TRIAL OBSERVATION PAPER - DUE BY 5 pm NOVEMBER 20
General information: The object of this exercise is to help you conceptualize how evidence comes into play in the "real world". You need to spend a minimum of two and ½ hours or an entire trial (whichever is shorter) in one courtroom observing a trial. As you observe the trial, you should pay special attention to evidentiary objections - do you think the lawyers were objecting when they should have been; what did you think about the lawyers' evidentiary arguments; do you think the judge ruled correctly, etc.; did the attorneys do an effective job of presenting their evidence and/or arguing their case?
Two things to keep in mind:

1. The point of this exercise is to have you observe the presentation of evidence and/or evidentiary arguments made in open court. Thus observation of ONLY opening statements and/or closing arguments does not satisfy your observation obligation. It is fine if you observe opening or closings AND witness examinations.

2. Cases often settle right before and/or during trial. DO NOT WAIT UNTIL THE LAST MINUTE TO SCHEDULE YOUR OBSERVATION OR YOU MAY NEVER GET TO SEE A TRIAL and thus will get no credit for this assignment. I WILL NOT ACCEPT AS AN EXCUSE FOR NOT TURNING IN THIS PAPER THAT YOU WENT TO SEE A TRIAL AND IT SETTLED (or even that you went three times to see a trial and each time it settled) I strongly encourage you to try and pick a date/time early in the semester and at a courthouse with a lot of trials potentially happening at the same time so that if the trial calendar falls in one courtroom you can go to another, or if all the cases settle, you can go another time.
Specific assignment:
After observing the trial, you must write a short (2-3 page) paper that discusses what you saw. The first paragraph of the paper should be a brief description of the "logistics". It should have the following information:

1. The date/time you observed the case; 2. The judge and courtroom number; 3. The place - e.g. Fulton County State Court; Gwinnett County Superior Court, U.S. District Court; 4. The names of the parties (during a break, you can ask the court clerk or the lawyers involved in the trial for the names of the parties or you can get this from the Fulton County Daily Report); 5. The kind of case you observed(e.g. DWI, murder, personal injury) and, 6. What portion of the trial you observed (e.g. the direct examination of a medical witness; the entire trial; the direct and cross examination of several witnesses, etc.)

The remaining portion of your paper should discuss what you observed as you watched the lawyers, witnesses and the judge. I do not want simply a blow by blow account of what happened. I want an account of what happened combined with YOUR ANALYSIS and impressions about the way the courtroom scenario played out. You may write about anything that strikes you during your observation. For example, was the lawyer doing an effective job examining the witness -- why/why not; was the lawyer constantly making objections (why was she doing this and how was the judge/jury reacting); were there an inordinate number of bench conferences over evidentiary issues - did you agree with the rulings why/why not; Did the lawyer(s) fail to object when you would have done so - why do you think this happened, etc.
The paper should be short - 2 to 3 pages. If you desperately need more space to adequately describe what you saw and what you thought about how evidence rules actually come into play in the "real world" you may use up to four pages. However, you will not get a better grade for being verbose and, in fact, if I have to wade through a tremendous amount of "filler" and no analysis you will lose points.

Feel free to talk to the judge, the judge's clerks and/or the attorneys after the case and see what they have to say about things you have questions about. Students who have taken the time to talk to these people invariably have found it to be a really rewarding experience. Finally, but most importantly, have fun with this assignment!

THEORY OF THE CASE
(i) If you represent the state, come up with a BRIEF description of what you want the jury to believe happened and WHY it happened the way you say it did. If you represent the defense, come up with a BRIEF description of what you want the jury to believe happened and WHY it happened the way you say it did. (This is your "theory of the case). Note - after you come up with an explanation - see if you can explain it in a sentence or two. For example, in the OJ case, the state's theory of the case was that OJ was an agile, strong, hot tempered, jealous man who snuck up on Nicole and Ron Goldman and killed them both in a fit of jealous rage. The defense theory of the case was the OJ was the victim of a racist, incompetent police force.
As you develop your theory of the case, identify the evidence in the case file that helps you support your theory and identify the evidence that undermines your theory. NOTE: In developing your theory of the case, make sure you pay attention to the specific crimes charged and the likely jury instructions. Also remember that the defense has the option of not calling Mr. Wyatt to testify. Think about why these things (the crimes charged, the jury instructions and the defendant's option not to testify) are important to your theory.

(ii) Can you come up with a catchy theme that emphasizes the nature and strength of your theory of the case? For example, O.J Simpson's defense team had two: "The physical evidence was corrupt, contaminated, and compromised." Those three words appeared repeatedly in the cross examination of the state witnesses. The other, of course, was the unforgettable, "If it doesn't fit, you must acquit."

(iii) As we go through the course, you may discover that some of the evidence you planned to use is inadmissible. Think about what evidence is essential to your theory. Think about how you would change your theory if that evidence is inadmissible.